Page 286 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 9989

(6)Fonvarding. Upon written notice to the military judge under paragraph (b)(3) of this rule,
trial counsel shall promptly and by expeditious means forward the appeal to a representative of
the Government designated by the Judge Advocate General. The matter forwarded shall include:
a statement of the issues appealed; the record of the proceedings or, if preparation of the record
has not been completed, a summary of the evidence; and such other matters as the Secretary
concerned may prescribe. The person designated by the Judge Advocate General shall promptly
decide whether to file the appeal with the Court of Criminal Appeals and notify trial counsel of
that decision.
(7) Appealfiled. If the United States elects to file an appeal, it shall be filed directly with the
Court of Criminal Appeals, in accordance with the rules of that court.
(8) Appeal notfiled. If the United States elects not to file an appeal, trial counsel promptly
shall notify the military judge and the other parties.
(9) Pretrial COI?finement qf accused pending appeal. If an accused is in pretrial confinement at
the time the United States files notice of its intent to appeal under paragraph (b )(3) of this rule,
the commander, in determining whether the accused should be confined pending the outcome of
an appeal by the United States, should consider the same factors which would authorize the
imposition of pretrial confinement under R.C.M. 305(h)(2)(B).
(c) Appellate proceedings.
(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings
under this rule as provided in R.C.M. 1202. Appellate Government counsel shall diligently
prosecute an appeal under this rule.
(2) Court of Criminal Appeals. An appeal under Atiicle 62 shall, whenever practicable, have
priority over all other proceedings before the Court of Criminal Appeals. In determining an
appeal under Article 62, the Court of Criminal Appeals may take action only with respect to
matters of law.
(3) Action following decision (if Court t!f Criminal Appeal-s. A±ler the Court of Criminal
Appeals has decided any appeal under Article 62, the accused may petition for review by the
Court of Appeals for the Armed Forces, or the Judge Advocate General may certify a question to
the Court of Appeals for the Anned Forces. The parties shall be notified of the decision of the
Court of Criminal Appeals promptly. If the decision is adverse to the accused, the accused shall
be notified ofthe decision and of the right to petition the Court of Appeals for the Armed Forces
for review within 60 days orally on the record at the court-martial or in accordance with R.C.M.
1203(d). If the accused is notified orally on the record, trial counsel shall forward by expeditious
means a certificate that the accused was so notified to the Judge Advocate General, who shall
forward a copy to the clerk of the Court of Appeals for the Armed Forces when required by the
Court. Ifthe decision by the Court of Criminal Appeals pennits it, the court-martial may proceed
as to the affected charges and specifications pending further review by the Court of Appeals for
the Armed Forces or the Supreme Court, unless either court orders the proceedings stayed.
Unless the case is reviewed by the Court of Appeals for the Armed Forces, it shall be returned to
the military judge or the convening authority for appropriate action in accordance with the
decision of the Court of Criminal Appeals. If the case is reviewed by the Court of Appeals for
the Armed Forces, R.C.M. 1204 and 1205 shall apply.

Rule 909. Capacity of the accused to stand trial by court-martial
(a) In general. No person may be brought to trial by court-martial if that person is presently
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suffering from a mental disease or defect rendering him or her mentally incompetent to the